EVS BROADCAST EQUIPMENT SA, Parc Scientifique du Sart Tilman, Rue Bois St Jean, 13, 4102 LIEGE, BELGIUM, Register of Legal Entities of Liège 0452.080.178
1. Scope
1.1. These general terms and conditions of Purchase, together with the relevant purchase order issued by EVS (the “Purchase Order”) shall apply to all purchases of products (“Products) and/or services (“Services”) by EVS Broadcast Equipment
SA or any of its affiliates (“EVS”) to you (“Supplier”) provided that they do not conflict with any other contractual provision expressly agreed by EVS.
2. Formation of the agreement
2.1. Requests for prices or tendering by EVS shall be without commitment.
2.2. EVS’ offer to purchase Products and/or Services from Supplier is subject to these general terms and conditions of Purchase and the relevant Purchase Order.
An agreement is formed as soon as Supplier accepts EVS’ offer, either by acknowledgement, delivery of any Products and/or commencement of performance of any Services. EVS shall consider that the Supplier has unconditionally accepted the Purchase Order sent by EVS in case the Supplier fails to object or reject to EVS’ offer within eight (8) days.
2.3. Such Agreement is limited to these general terms and conditions of Purchase and the relevant Purchase Order (the “Agreement”) which will supersede any other terms and conditions of Supplier, even if these have not been specifically rejected by EVS.
3. Delivery
3.1. The delivery is made pursuant to the Incoterm (2010) set forth in the relevant
Purchase Order
3.2. Delivery times are imperative and contractually binding upon the Supplier.
Supplier shall be held liable for any cost or liability incurred by EVS as a result of a delay in delivery of the Products.
3.3. If Supplier anticipates any difficulty in complying with any delivery date or any of its other obligations under the Agreement, Supplier shall promptly notify
EVS in writing.
3.4. If the delay in delivery becomes unreasonable with regard to the emergency of the purchase for EVS which has been communicated to the Supplier, EVS may immediately terminate the Agreement by giving written notice to Supplier.
3.5. Supplier shall pack, mark and ship the Products pursuant to commercial standard practices and EVS’ requirements in order to prevent any damage during transport and to facilitate handling of the Products by EVS.
3.6. Supplier shall, when delivering the Products, provide EVS with all documents
(in English version) that are required for the installation and safe operations of the
Products.
3.7. EVS reserves the right to refuse delivery of Products and return them at
Supplier’s risk and expense if Supplier defaults in the manner and time of delivery.
4. Changes in Purchase Order
4.1. It is hereby agreed between the Parties that EVS reserves the rights to increase or decrease the quantity of Products and Services through written notification to
Supplier at any time. Supplier agrees that any increase or decrease in the quantity of Products to be supplied or of Services to be performed shall lead to an adjustment in the price agreed to be paid by EVS to Supplier under this Agreement.
The change will take effect only when EVS notifies the Supplier of its acceptance of the new price.
5. Price
5.1. The prices for the Products and/or Services are fixed in the currency set forth in the relevant Purchase Order. The price is firm and not subject to any upward adjustment of any kind.
6. Payment
6.1. Provided that the Products and/or Services have been delivered in full,
Supplier’s invoices shall be paid in the currency and within the term set forth in the relevant Purchase Order. The invoices shall notably mention the country of origin of the Products and /or Services, as well as the harmonized code.
6.2. Payments shall not constitute any acknowledgement by EVS that the Products and/or Services comply with the Purchase Order.
7. Acceptance
7.1. EVS shall only accept the Products and Services delivered by the Supplier, that are in strict compliance with the Purchase Order, the applicable rules, the industry standards and good practice, the state of the art and the normal usage requirements of reliability and durability.
7.2. In the event that EVS and Supplier have agreed that the Products or Services are subject to factory or on-site acceptance tests, EVS and Supplier shall agree on the acceptance procedures by mutual agreement.
8. Subcontracting
8.1. Any subcontracting or sub-supply by Supplier shall not take place without
EVS’ prior written consent. In the event of any unauthorized subcontracting or sub-supply by Supplier, EVS shall not be entitled to receive the Products and
Services so supplied and pay the price thereof.
8.2. Supplier shall at all times be solely and entirely responsible towards EVS for the conduct of operations and control of its subcontractors and suppliers and shall cause them to comply with EVS’ requirements, internal policies and procedures at any time.
9. Warranty
9.1. Supplier Service Warranty . Supplier warrants that it shall supply the Service in a workmanlike manner. Upon breach of Supplier Service Warranty, EVS shall be entitled to require the provision of the Service once again.
9.2. Supplier Product Warranty . Supplier warrants that the Product shall substantially conform to the specifications contained in the Purchase Order in effect at the delivery and be free from any defects in material and workmanship.
Upon breach of the Supplier Product Warranty, EVS shall be entitled to require, at its sole discretion, either the repair or the replacement of the defective Product with an identical Product at the expenses of the Supplier. EVS shall also be entitled to request a reasonable price reduction or credit for future purchases instead of performance by Supplier of repair or replacement. In addition, the Supplier shall indemnify EVS for any consequential damage.
The Supplier Product Warranty is furthermore subject to the following:
9.2.1. Unless otherwise agreed in writing, Supplier Product Warranty covers defects occurring within two (2) years from the date of delivery of the relevant
Product. In case of repair or replacement, the Warranty period shall continue to run until its expiry or six (6) months after the repair or replacement, whichever is longer;
9.2.2. At Supplier’s request, EVS shall return to Supplier any Product or parts in which a defect covered under this article has appeared, for repair or replacement;
9.2.3. The Supplier shall bear all costs, risks and insurance relating to the dismantling, transport, installation, testing and putting into service of (a) returned defective Products or parts thereof and of (b) repaired and/or replacement Product or parts thereof supplied by Supplier. Supplier shall furthermore be responsible for any taxes, duties and custom clearance in this respect;
9.2.4. Supplier shall repair or, at EVS’s option, replace any defective Product or any defective parts thereof within a reasonable time depending on the issue at stake. In case of replacement of any defective Product or any defective parts thereof, this defective Product or parts remains the property of EVS upon delivery to EVS of the relevant Product or parts thereof free from defects;
9.2.5. If the nature of defect is such that it is appropriate in Supplier’s opinion, and with EVS’ approval, to effect repair on site, Supplier shall provide on-site assistance. The travel time and the travel and living expenses of the service engineer in this respect shall be payable by Supplier.
9.3. In case the Products or Services do not fit the Warranties and Supplier, after
EVS’ request, fails to rapidly perform appropriate remedial action as provided in paragraphs 9.1. and 9.2. above, or if the defective Products or Services require urgent remedial action, EVS may in addition to its claim for damages, at its sole discretion, after notifying Supplier of its intent to do so, perform or cause to be performed at Supplier's risk and expense, any remedial action EVS sees fit, including without limitation to (a) cancel of the Purchase Order, (b) reject and return of the Products or Services with total refund of the price paid, (c) refuse to accept any further deliveries of Products and Services and (d) carry out any action necessary to cause the Products or Services to comply with the requirements stated in the Purchase Order. Supplier shall pay within thirty (30) days after receipt of
EVS’ invoice, all reasonable costs whatsoever incurred by EVS as a result of or in connection with any such remedial action.
10. Liability
10.1. In case of claims, actions, suits, proceedings, demands, judgments, liabilities, damages, losses, costs and expenses (including without limitation reasonable attorney fees) of any kind launched against or incurred as a result of or in any way connected with the Products or Services of the Supplier or of anyone acting under its direction or control or on its behalf (including without limitation defective workmanship, non-conforming Products or Services, direct or indirect breach of the warranties by Supplier or Supplier’s negligence, Supplier’s failure to comply with laws and regulations), Supplier shall be liable for and defend, hold harmless and indemnify EVS, its affiliates, agents, employees and third party in this respect.
10.2. Even though EVS shall give Supplier prompt written notice of any such claim, action, suit, proceeding, demand, judgment, liability, damage, loss, costs and expenses, any delay in notice shall not relieve Supplier of its obligations here above except to the extent it is prejudiced by such delay.
10.3. Unless otherwise agreed in writing, EVS’ total liability that may arise as a result of or in connection with this Agreement, whether under tort (including negligence), breach of statutory duty, breach of common law or any other cause of action whatsoever, shall be limited to the price of the Products and Services in relation to which the claim is made effectively paid by EVS to the Supplier and shall in any event never exceed the sum of EUR 1,000,000 in aggregate.
10.4. In no event shall EVS be liable for indirect, incidental, special, consequential or punitive damages, which includes without limitation damages for loss of profits or revenues, lost business opportunities, loss of image or lost data, even if EVS has been advised of the possibility of such damages.
10.5. Nothing in this Agreement shall limit nor exclude either party’s liability to the other for death or personal injury caused by negligence, fraud or any liability in the tort of deceit.

EVS BROADCAST EQUIPMENT SA, Parc Scientifique du Sart Tilman, Rue Bois St Jean, 13, 4102 LIEGE, BELGIUM, Register of Legal Entities of Liège 0452.080.178
11. Intellectual property
11.1. Supplier represents and warrants to EVS (a) that the Products and Services do not and shall not, alone or in any combination with other Products or Services, infringe or violate any intellectual property right (including without limitation patents, trademarks, copyrights, trade names, trade secrets, licenses) of any other party (including Supplier’s employees and subcontractors), and (b) that it holds all rights, title and interest necessary to licence to EVS any intellectual property right
(including without limitation patents, trademarks, copyrights, trade names, trade secrets, licenses) of every component of the Products and Services provided to
EVS, as a whole or as integrated part of another Product or Service.
11.2. In case of claims, actions, suits, proceedings, demands, judgments, liabilities, damages, losses, costs and expenses (including without limitation reasonable attorney fees) of any kind launched against or incurred as a result of or in any way connected with any third party claim that any of the Products or Services alone or in any combination or their use infringes any intellectual property right (including without limitation patents, trademarks, copyrights, trade names, trade secrets, licenses), Supplier shall be liable for and defend, hold harmless and indemnify
EVS, its affiliates, agents, employees and any person selling or using any of
Supplier’s Products in this respect.
11.3. Even though EVS shall give Supplier prompt written notice of any such claim, action, suit, proceeding, demand, judgment, liability, damage, loss, costs and expenses, any delay in notice shall not relieve Supplier of its obligations here above except to the extent it is prejudiced by such delay.
11.4. If any Products or Services as a whole or as integrated part of another Product or Service, supplied under this Agreement represent an infringement or if their use is enjoined, Supplier shall, at EVS’ sole discretion, but at Supplier’s own expense: either (a) procure for EVS or EVS’ customers the right to continue using the
Products or Services alone or in any combination; or (b) replace or modify the
Products or Services as a whole or as integrated part of another Product or Service with a functional, non
‐
infringing equivalent.
11.5. If Supplier is unable either to procure for EVS the right to continue to use the Products or Services as a whole or as integrated part of another Product or
Service or to replace or modify the Products or Services as a whole or as integrated part of another Product or Service in accordance with the above, EVS may terminate the Agreement and upon such termination, Supplier shall reimburse to
EVS the total price paid, without prejudice to Supplier's obligation to indemnify
EVS for any damages it has experienced.
12. Export Compliance
12.1. Supplier warrants to observe the national, European and international rules on export control and shall inform EVS in case the Products or Services were to be classified as “controlled items” in accordance to export control lists including without limitation EC REG No. 1334/2000 of the European Union and to
Commerce Control List (CCL) of the U.S. Export Administration Regulations
(EAR).
13. Confidentiality
13.1. Supplier acknowledges that all technical, commercial and financial information or data relating to EVS’ Products and Services, including but not limited to the Purchase Order and technical documentation, which is in any way disclosed to the Supplier, whether or not marked as “Confidential” or
“Proprietary” (the “Confidential Information”) shall be considered as strictly confidential.
13.2. The Supplier shall not disclose any such Confidential Information to any third party and shall not use any such Confidential Information for any purpose other than as agreed by EVS.
13.3. In this context, Supplier shall take all necessary steps to avoid the disclosure of this Confidential Information and use the same care and discretion as in protecting its own confidential information in order to hold them in confidence
(but, in any event, not less than a reasonable degree of care). Supplier shall limit the access to such Confidential Information to its directors, employees, subcontractors, agents, distributors or customers as far as strictly necessary for the use the Products and Services and shall impose them a duty of confidentiality in respect with the Confidential Information.
13.4. These confidentiality obligations shall remain in full force and effect during the negotiations and the term of the Agreement. They shall survive the termination or expiration thereof as long as the said Confidential Information has not come into the public domain.
14. Assignment
14.1 Supplier shall not assign any of its rights or obligations under the Agreement without the prior written consent of EVS.
15. Termination – Cancellation
15.1. If Supplier fails to fulfil at the time or in the manner provided in the Purchase
Order any obligation or condition required to be fulfilled by Supplier under the
Purchase Order and if Supplier fails to perform rapid remedial action to any such failure within a reasonable time with regard to the emergency of the purchase for
EVS which has been communicated to the Supplier, EVS may cancel the Purchase
Order in question or any part thereof by giving written notice of termination to
Supplier within any reasonable period thereafter.
15.2. Any Agreement may be terminated by EVS with immediate effect upon
Supplier’s in case of: (a) material breach to the Agreement and failure to remedy such breach within thirty (30) days after written notification of such breach
(provided that there shall be no obligation to notify the Supplier if such breach is incapable of being remedied or incapable of being remedied within fifteen (15) days), (b) filing of a petition in bankruptcy not dismissed within thirty (30) days;
(c) insolvency; (d) making of an assignment for the benefit of creditors, or the entering into of any other arrangement having similar effect; or, (e) initiation of proceedings for the dissolution or liquidation of business operations, (f) any direct or indirect change of control (within the meaning of Article 5 of the Belgian
Company Code (“ Code des sociétés ”) on Supplier, or the direct or indirect acquisition by any person of more than twenty-five percent (25%) of the shares or ownership interests of Supplier.
15.3. Upon the termination or expiration of a Purchase Order, Supplier shall not be entitled to any indemnification or compensation.
16. Governing laws
16.1. These terms and conditions are governed by and construed in accordance with the laws of Belgium, to the express exclusion of its conflict of laws rules and to the express exclusion of the United Nations Convention on international sales contracts signed in Vienna on April 11, 1980.
17. Jurisdiction
17.1. All disputes arising out of or in connection with any offer or Agreement with
Supplier shall first be attempted by the Supplier and EVS to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation.
17.2. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Liège, Belgium, or, at EVS’ option, the courts of Supplier’s registered office, and without prejudice to the enforcement of any judgment or order thereof in any other jurisdiction.
18. Miscellaneous
18.1. EVS will not be responsible or liable for failing to perform its obligations under the Agreement to the extent caused by circumstances beyond EVS’ reasonable control. EVS’ failure to exercise any rights under the Agreement is not a waiver of our rights to damages for Supplier’s breach of Agreement and is not a waiver of any subsequent breach. If any provision of these terms and conditions is held by any court or authority to be invalid or unenforceable, the other provisions shall remain in full force and effect and shall not be affected or invalidated.